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2006
Innocent of a Capital Crime: Parallels Between
Innocence of a Crime and Innocence of the Death
Penalty
Linda Carter
Pacific McGeorge School of Law
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Part of the Criminal Law Commons, and the Criminal Procedure Commons
Recommended Citation
42 Tulsa L. Rev. 437 (2006)
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INNOCENT OF A CAPITAL CRIME: PARALLELS
BETWEEN INNOCENCE OF A CRIME AND
INNOCENCE OF THE DEATH PENALTY
Ellen Kreitzberg*
Linda Carter**
I.
INTRODUCTION
The death penalty continues to be a controversial topic in the United States today.
Public debate ranges from the fundamental question of whether the death penalty is ever
justified for a serious crime, 1 the legitimacy of lethal injection as a method of execution,2
and, more recently, the likelihood of executing an innocent person. The modem death
penalty statutes were enacted following Furman v. Georgia 3 in 1972. At that time, the
Supreme Court struck down existing death penalty statutes finding that they were
unconstitutional. Although there was no single, majority opinion, the "middle" of the
Court found that the procedures involved in the existing death penalty statutes created a
* Professor of Law, Santa Clara University Law School. I would like to thank Santa Clara students Seth
Gottlieb and Spencer Chen for their excellent research assistance.
• • Professor of Law, University of the Pacific, McGeorge School of Law. I would like to acknowledge the
excellent research assistance of McGeorge students Andrew McClelland, Ben Eilenberg, and Jennifer Alesio.
I. Linda Caner & Ellen Kreitzberg, Understanding Capital Punishment Law 7- 16 (Lexis 2004). The
book discusses the arguments for and against the death penalty. Initially, the analysis begins with the Eighth
Amendment prohibition of"cruel and unusual punishment." The debate turns to penological purposes, such as
deterrence and retribution. The remainder of the discussion focuses on equality, fairness, and politics, such as
the fairness of the system and financial cost of executions. See also Richard Dieter, Twenty Years of Capital
Punishment: A Re-evaluation, http://www.deathpenaltyinfo.org/article.php?did=543&scid=45 (June 1996)
(discussing racial discrimination, inequality of the capital punishment system, deterrence, financial costs, and
risk of executing the innocent and international developments).
2. See e.g. LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999); Provenzano v. Moore, 744 So. 2d 413 (Fla.
1999); Henry Weinstein & Maura Dolan, Judge Concludes Hearings on Lethal Injection, L.A. Times,
http://www.topix.net/content/trb/05148247 1638324089142834261 3434059356 137 (Sept. 30, 2006) (U.S.
district court judge conducted a four-day hearing to consider whether California's lethal injection execution
method is unconstitutional because it amounts to cruel and unusual punishment); see generally Lambright v.
Lewis, 932 F. Supp. 1547 (D. Ariz. 1996), rev'd on other grounds sub nom. Lambright v. Stewart, 167 F.3d
477 (9th Cir. 1999); State v. Webb, 750 A.2d 448 (Conn. 2000) (upholding lethal injection as constitutional).
3. 408 U.S. 238 (1972) (per curiam). The U.S. Supreme Court found the Georgia capital punishment
statute unconstitutional, essentially striking down forty state death penalty statutes and invalidating six hundred
death sentences. States responded with new death penalty statutes and procedures to avoid the arbitrary and
capricious imposition of the death penalty. Five new state statutes went before the U.S. Supreme Court in 1976
and the Court upheld three out of five statutes. Gregg v. Ga., 428 U.S. 153 (1976) (upheld); Proffitt v. Fla.,
428 U.S. 242 (1976) (upheld); Jurek v. Tex., 428 U.S. 262 (1976) (upheld); Woodson v. N.C., 428 U.S. 280
( 1976) (invalidated); Roberts v. La., 428 U.S. 325 ( 1976) (invalidated).
437
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[Vol. 42:437
substantial risk that the death penalty would be imposed in an arbitrary and capricious
manner.
In the years following, a complex system of laws, statutes, and procedures were
enacted in an effort to satisfy the Court's concerns. These procedures were also designed
to ensure, if not guarantee, that those who were convicted and sentenced to death were in
fact guilty. 4 In 1976,5 however, there was little discussion about whether the death
penalty would be used to execute an innocent person. 6 At that time, courts were
concerned about whether the death penalty served a legitimate penological purpose and
whether inappropriate factors such as bias, discretion, geographical inequities,
inadequate defense counsel, or race would play a role in the decision of who would live
and who would die.
Today, those same concerns exist. However, the question of innocence now looms
large in the debate. We now know that innocent people have been convicted and
sentenced to death. 7 As one prominent legal scholar notes, "[w]e do in fact convict
innocent people and do so in numbers, if not percentages, that should make us
uncomfortable."8 Those who had earlier supported the death penalty began to express
concern about the execution of an innocent person. 9 Even Supreme Court Justices have
spoken publicly about the reality that innocent people are sentenced to death. 10
4. See Herrera v. Collins, 506 U.S. 390, 420 (1993) (O'Connor, J., concurring) ("Our society has a high
degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled
protections against convicting the innocent.").
5. !d.
6. See Richard Rosen, Innocence and Death, 82 N.C. L. Rev. 6 1, 62---{)3 (2003) ("O'Connor's blithe
confidence in the efficacy of our procedural protections in capital cases [as discussed in Herrera] was not
challenged by any of the other Justices writing in that case, nor did her statement subject her to widespread
criticism.").
7. From 1973 through September 17, 2006, 123 people had been released from death row on grounds
directly related to innocence.
Death Penalty Info. Ctr., Innocence and the Death Penalty,
http://www.deathpenaltyinfo.org/article.php?did=4 12&scid=6 (accessed Sept. 17, 2006); see Rosen, supra n. 6,
at 78- 79 (noting that exculpations have come from DNA testing, confessions of actual parties to the crimes,
new evidence, and the discrediting of prosecutorial evidence.).
8. !d. at 64.
9. Vincent F. Callahan, Jr., Virginia Needs a Moratorium on the Death Penalty,
http://www.deathpenaltyinfo.org/article.php?scid= 17&did=322 (Jan. 3 1, 2002) (Callahan, a representative of
the 34th House of Delegates at the time of the article writes, "In the past, I have been a strong advocate of the
death penalty.... (H]owever, I have now become one of those who believe we must take another look at the
death penalty." He further states, "[n]ew scientific evidence, such as DNA testing, has revolutionized all areas
of crime detection, criminal prosecution and criminal defense."); Jeff Flock, "Blanket Commutation " Empties
Illinois Death Row, http://www.cnn.com/2003/ LAW/Ollll / illinois.death.row/ (Jan. 13, 2003) (After thirteen
inmates were exonerated, the outgoing governor, George Ryan, commuted all death sentences, stating "[o)ur
capital system is haunted by the demon of error: error in determining guilt and error in determining who among
the guilty deserves to die."); Gustav Niebuhr, Tucker Case May Split Evangelical Christians, N.Y. Times A20
(Feb. 4, 1998) (noting that a national broadcast of one death row defendant's C hristian faith transformation
sparked a national debate among Christian evangelicals about "where justice should end and mercy begin.");
George Will, Innocent on Death Row, Wash. Post A23 (Apr. 6, 2000) (noting that Oklahoma almost put to
death an innocent man on death row stating, " (c ]onservatives, especially, should draw this lesson from the
book: Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism
is in order.").
I 0. Atkins v. Va., 536 U.S. 304, 320 n. 25 (2002) (Justice Stevens voices concern that "in recent years a
disturbing number of inmates on death row have been exonerated."); 0 'Connor Questions Death Penalty, N.Y.
Times A9 (July 4, 2001) (In a speech to the Minnesota Women Lawyers Association, Justice O'Connor states,
" if statistics are any indication, the system may well be allowing some innocent defendants to be executed.");
Justice: "Serious Flaws" in Death Penalty, http://www.cnn.com/2005/LAW/08/07/death.penalty/index.html
(Aug. 7, 2005) (Justice Stevens stated that " DNA evidence bas shown that a substantial number of death
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INNOCENT OF A CAPITAL CRIME
439
The public discussion of innocence has focused on a person who claims factual
innocence of the crime charged. In capital cases, the crime is usually murder in the first
degree. 11 An individual claims that he or she is not the person who committed the
murder. From a legal perspective, innocence of the crime charged requires a showing
that the government has failed to prove all elements of the crime.
A second concept of innocence in capital cases is "innocence of the death penalty"
or "innocence of death." 12 The Supreme Court adopted this phrase to refer to those
defendants who are not eligible for a sentence of death because the state is unable to
prove the basic eligibility criteria for imposing a sentence of death. 13 When a defendant
is innocent of the death penalty, the government has failed to factually prove a
constitutionally mandated factor that places the defendant in the pool of persons who
may be sentenced to death. 14
It is easy to understand both the meaning and importance of not executing a person
innocent of the underlying crime. Public awareness and concern of factual innocence of
the crime gained momentum once DNA evidence provided the basis for a number of
exonerations, including some from death row. 15 The public image of innocence is a man
or woman who walks out of prison after years of wrongful incarceration.
Perhaps less dramatic but still constitutionally significant is the concept of
innocence of the death penalty. There is no compelling public image for these men and
women. A defendant innocent of the death penalty may still be guilty of the underlying
crime of murder and therefore unlikely to gamer public attention or sympathy. However,
in such cases, an aggravating circumstance is entirely lacking and a defendant should not
be among the pool of persons to whom the death penalty should apply. An example of
an aggravating circumstance is a murder that is committed in the course of a rape. It is
the added element of rape that places the defendant in the pool of death-eligible
individuals. If the defendant killed the victim, but is factually innocent of raping the
victim and rape is the only aggravating factor in the case, the death penalty cannot
constitutionally be imposed. The defendant is "innocent of the death penalty" or
innocent of the death-eligibility element. Although deserving of punishment, this
individual should not be executed. He also should be afforded access to federal courts
sentences have been imposed erroneously. . . . [I)t indicates that there must be serious flaws in our
administration of criminal justice.").
II. See Carter & Kreitzbcrg, supra n. I, at 85-93 (discussing nonmurder crime statutes making defendants
eligible for death, such as child rape and federal espionage).
12. Sawyer v. Whitley, 505 U.S. 333,345 (1992).
13. /d. ("[l]nnocent of the death penalty [means) allowing a showing in addition to innocence of the capital
crime itself a showing that there was no aggravating circumstance or that some other condition of eligibility
had not been met." (internal quotation marks and footnote omitted)).
14. See Cal. Pen. Code § 190.2(a) (1999) (providing that the penalty is death or a life sentence without
parole for a defendant found guilty of first degree murder along with a finding of special circumstances, such as
evidence that the perpetrator was a major participant in the crime and acted with reckless disregard for human
life; the murder was especially heinous, manifesting exceptional depravity; or the victim was a police officer).
In all capital cases, these eligibility criteria include proof of at least one valid aggravating circumstance.
Aggravating circumstances add an element based on the nature of the crime or the status of the victim. For
example, typical aggravating circumstances include murders in the first degree committed in the course of
serious felonies, such as rape, robbery, kidnapping, or arson; murders in the first degree committed with torture
or double homicides; and murders in the first degree of a judge, prosecutor, witness, or juror. See id.
15. From 1973 through September 17,2006, DNA played a substantial factor in establishing the innocence
of fourteen people released from death row. Death Penalty Info. Ctr., supra n. 7.
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[Vol. 42:437
equal to that of a person innocent of murder for reviewing claims related to innocence.
All questions of innocence of a crime are, at least initially, decided at trial.
Culpability for the base crime, such as murder in the first degree, is decided during the
guilt/innocence phase of a trial. In most jurisdictions, questions of innocence of the
death penalty, or the existence of aggravating circumstances, are determined during a
penalty phase. In some jurisdictions, the existence of an aggravating circumstance is
decided during the guilt phase. 16
There is overall agreement that the "trial is the 'main event"' where the question of
innocence should be fully litigatedP In an effort to ensure a fair and reliable result at
trial, the courts and the legislatures have established numerous procedural safeguards. 18
But sometimes a jury makes a mistake or just gets it wrong; a person who is factually
innocent of murder is convicted of the crime or one who is factually innocent of the
aggravating circumstance is found eligible for the death penalty.
What remedy is available to a person who is wrongfully found to be eligible for the
death penalty? That is the question this article seeks to explore. The answer to the
question is largely dependent on the availability of federal habeas corpus proceedings. 19
The current habeas statutory provisions and judicial decisions from the last thirty
years reflect particular concern with claims of innocence. 20 Despite the growing trend
toward restricting access to federal court review, courts and legislatures continued to
carve out exceptions based upon a sufficient showing of "innocence." The current
habeas statute provides for relief from certain bars to habeas hearings upon a showing of
21
innocence of the underlying offense. Judicial decisions have carved a miscarriage-ofjustice exception to habeas hearings upon a showing of "actual innocence" that includes
innocence of the crime and innocence of the death penalty. 22
We must begin, therefore, with an understanding of innocence. We will compare
innocence of a crime with innocence of the death penalty and demonstrate how a claim
of innocence under either definition must be afforded the same deference in obtaining
access to federal court. This may arise under two distinct scenarios. First, a court may
rule that a petitioner has failed to comply with a state procedural rule and his claims are
now barred from federal court. These "procedurally defaulted" claims may still be
16. Jurek, 428 U.S. at 262-63.
17. McFarland v. Scali, 512 U.S. 849, 859 (1994) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983))
("A criminal trial is the ' main event' at which a defendant's rights are to be detennined, and the Great Writ is
an extraordinary remedy that should not be employed to ' relitigate state trials. '"); see Holmes v. S.C., 547 U.S.
1727, 1728 (2006) (quoting Crane v. Ky., 476 U.S. 683, 690 (1986)) ("Whether rooted directly in the Due
Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the
S ixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a
complete defense. "').
18. Herrera, 506 U.S. at 410-17 (explaining the current mechanisms serving as protections for avoiding the
execution of an innocent person).
19. Another post-conviction remedy is clemency. Clemency, however, is not a judicial proceeding and is
reposed almost exclusively in the executive branch. Carter & Kreitzberg, supra n. I, at 257. It is a process
without standards, procedures, or effective review. Given the nature of clemency, it is a rare remedy for
persons wrongfully convicted of a crime and even rarer for a person claiming a wrongful finding of an
aggravating circumstance. As a result, we do not spend time discussing clemency in this article because, in
reality, it is not a consistent or reliable remedy. /d. at 256-64.
20. See id. at 239; see also Schlup v. Delo, 513 U.S. 298 ( 1995); Sawyer, 505 U.S. at 366-67.
2 1. 28 U.S.C. §§ 2244(b)(2)(B), 2254(e)(2)(B) (2000).
22. Sawyer, 505 U.S. at 345.
2006]
INNOCENT OF A CAPITAL CRIME
441
heard in federal court when a petitioner raises a claim of actual innocence. We argue
that these claims of innocence shold include claims of innocent of the death penalty.
Second, we examine the changes in habeas corpus that were made in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). 23 Although this legislation
dramatically restricted a petitioner's ability to present claims, the bill did retain an
exception for a petitioner who makes a sufficient showing of innocence. Because there
is no explicit defmition of innocence in the legislation, the question of whether the
statute includes a claim of innocence of the death penalty within its purview has not yet
been clearly determined. In this article we conclude that both claims of innocence of the
crime and innocence of the death penalty should be included within the definition of
innocence in AEDPA.
This analysis begins with an examination of the Court's Eighth Amendment
jurisprudence and how this impacts the procedures that are required in a capital trial.
Then we will present a brief review of habeas corpus law and the barriers that have been
imposed to restrict federal court review of claims. We will explain how AEDPA
modified the ability of a petitioner to get evidentiary hearings and imposed restrictions
on the filling of second or successive petitions. Then, we will look at circumstances in
which claims of innocence may be raised in a petition for habeas corpus. 24 Finally, we
will compare the standards for review when claims of innocence are standing alone as
the primary constitutional claim with claims of innocence that are coupled with other
constitutional violations at trial to see how it impacts a petitioner's ability to prove
innocence.
II.
EIGHTH AMENDMENT J URISPRUDENCE AND THE
CONSTITUTIONALITY OF THE DEATH PENALTY
The 1970s and early 1980s mark the beginning of modem death penalty
jurisprudence. In 1972, in Furman v. Georgia, the Court examined several existing
death penalty statutes. 25 The Court observed that, in recent years, although large
numbers of defendants were technically eligible for the death penalty, it was neither
sought by the prosecutors nor imposed by juries. The Court was concerned that the
death penalty was being imposed in an arbitrary, or even racially discriminatory, manner,
striking unpredictably and destroying the confidence that the death penalty was reserved
for the worst of the worst. 26 This concern led the Court to strike down almost all
23. Pub. L. No. 104- 132, 110 Stat. 1215 ( 1996).
24. After a conviction at trial, a defendant may pursue a direct appeal to the appellate courts. This review,
however, is not designed to examine questions of guilt or innocence but rather to look at the errors that the trial
court may have made regarding admissibility of evidence, jury instructions, and perhaps the sufficiency of the
evidence presented. Herrera, 506 U.S. at 402 (noting the "(i]nquiry does not focus on whether the trier of fact
made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or
acquit" (emphasis omitted)); People v. Bolden, 58 P.3d 931, 955 (Cal. 2002) (stating that appellate courts
review '"the entire records in the light most favorable to the prosecution'" and the standard is whether '"a
rational trier of fact could find the defendant guilty beyond a reasonable doubt"' (quoting People v. Kipp, 33 P.
3d 450 (Cal. 2001))); Owens v. Stare, 611 A.2d 1043, 1046 (Md. Spec. App. 1992) (noting that courts will not
overturn a verdict if the jury's finding of guilt is "rational").
25. 408 u.s. 238.
26. See Carol Steiker & Jordan Steikcr, Defending Categonca/ t.'xemptions to the Death Penalty:
Reflections on the ABA 's Resolutions Concerning the Execution of Juveniles and Persons with Menral
442
TULSA LAW REVIEW
[Vol. 42:437
extstmg state statutes, finding that the procedures involved in extstmg death penalty
statutes created a substantial risk that the death penalty would be imposed in an arbitrary
and capricious manner. 27 The Court held that if states wanted to impose sentences of
death, they needed more structure and consistency in the manner in which the sentences
of death were decided. It was the unbridled discretion given to juries that made the
existing death sentences unconstitutional.
The states responded by passing new death penalty statutes almost immediately.
By 1976, there were more than 450 sentences of death around the country, and the
Supreme Court was ready to review the new statutes. Five cases went to the Supreme
Court that year. The Court struck down two statutes that imposed a mandatory death
sentence on defendants convicted of capital murder. 28 Three of the statutes were upheld
because the Court found that those statutes adequately addressed the constitutional
defects that Furman found to be fatal. 29
In reviewing the new statutes, the Court identified two distinct but critical aspects
of a constitutional death penalty statute: (I) the discretion of the jury must be sufficiently
directed and guided to ensure that the decision is not made in an arbitrary and capricious
manner and (2) there must be an individualized determination of the sentence that
considers both the crime as well as the character and background of the offender. It was
in the penalty phase of the trial that new procedures were put into place to meet these
constitutional requirements.
This structure provided the basis for the Court's Eighth Amendment jurisprudence:
to determine whether a state statute adequately narrows the class of individuals eligible
for a sentence of death and adequately allows for individualized consideration of the
defendant. 30 States have adopted different methods for narrowing the class of deatheligible defendants. 31 In most statutes, this narrowing occurs through the use of a list of
enumerated aggravating circumstances. 32 During the penalty trial, a jury must determine
the existence of these aggravating circumstances beyond a reasonable doubt for a
Retardation, 61 L. & Contemp. Prob. 89,98 (1998).
27. There was no majority opinion in Furman with each Justice writing his own opinion. Justices Brennan
and Marshall held that the death penalty was unconstitutional under all circumstances. Furman, 408 U.S. at
257, 305 (Brennan, J., concurring); id., at 314, 371 (Marshall, J., concurring). Justices Douglas, Stewart, and
White-in the middle of the Court-found that the procedures involved in the existing capital punishment
statutes created a substantial risk that the death penalty would be imposed in an arbitrary and capricious
manner. /d. at 240,256-57 (Douglas, J., concurring); id. at306 (Stewart, J., concurring); id. at 310 (White, J. ,
concurring).
28. Woodson , 428 U.S. at 286, 305; Roberts, 428 U.S. at 329, 336.
29. Gregg, 428 U.S. at 207; Projitt, 428 U.S. at 253, 259; Jurek, 428 U.S. at 276.
30. Walton v. Ariz., 497 U.S. 639,661 (1990) (Scalia, J., concurring in part and concurring in the judgment)
(describing an irreconcilable tension between the dual constitutional requirements of guided discretion and
individualized consideration); Richard Rosen, Felony Murder and the Eighth Amendment Jurisprudence of
Death, 31 B.C. L. Rev. 1103, 11!3- 15 ( 1990) (discussing the Court's reliance on these procedural protections
to realize its Eighth Amendment goals).
3 1. Eligibility for the death penalty must be distinguished from selection for the death penalty. Eligibility
establishes when the government has demonstrated that this defendant falls within a pool of persons for whom
the death penalty is an option. This is usually accomplished by the finding of an aggravating circumstance.
Once a person is eligible for the death penalty, then the jury (or judge) may weigh the various aggravating and
mitigating circumstances to decide whether the death penalty should be imposed on this defendant for this
crime. Carter & Kreitzberg, supra n. l , at 5154.
32. Some state statutes provide the equivalent of aggravating circumstances as part of the definition of a
capital crime. E.g. La. Stat. Ann.§ 14:30 (1997); Tex. Penal Code§ 19.03 (2003).
2006]
INNOCENT OF A CAPITAL CRIME
443
defendant to be considered for a sentence of death. The individualized consideration is
met through the admission of mitigating evidence and the ultimate selection decision of
death or life. 33 While the selection decision is afforded broad latitude and discretion, the
first two decisions are guided by specific elements or eligibility criteria that must be
proved by the government. Most importantly, there is no "capital crime," meaning that
the death penalty is not a punishment option absent a jury finding that at least one of the
.
.
.
34
aggravatmg circumstances IS present.
III.
THE CAPITAL TRIAL
A capital trial is really two distinct trials: the guilt/innocence phase and the penalty
phase. 35 The first phase decides the question of guilt or innocence, and the second phase
decides the question of the appropriate sentence. The second phase begins only if the
jury or judge has found the defendant guilty in the first phase. 36
A penalty phase resembles the guilt/innocence phase in many respects. The
lawyers give opening statements, call witnesses, introduce exhibits, and make closing
arguments. Just like the guilt/innocence phase, the judge instructs the jury at the
conclusion on how to proceed during deliberations. 37 Many of the same constitutional
protections apply in both the guilt/innocence phase and penalty phase. For example, a
defendant has a Fifth Amendment privilege against compelled testimony, a Sixth
Amendment right to counsel and to present a defense, and a Fourteenth Amendment
right to due process and equal protection.38
There are three decision points for the jury or judge if the defendant waives the
right to a jury. First, the fact finder makes a detennination that the base crime was
committed. This is ordinarily murder in the first degree and always is decided in the
guilt/innocence phase.
The second decision is whether the defendant is "death eligible."
This
detennination usually occurs in the penalty phase, but in some states, it is part of the
33. E.g. Cal. Penal Code § 190.3 (2006) ("If the defendant has been found guilty of murder in the first
degree, and a special circumstance has been charged and found to be true, ... the trier of fact shall determine
whether the penalty shall be death or confinement in state prison for a term of life without the possibility of
parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the
defendant as to any matter relevant to aggravation, mitigation, and sentence including ... the defendant's
character, background, history, mental condition and physical condition.").
34. E.g. id. at§ 190.2.
35. The Supreme Court has never explicitly held that a bifurcated proceeding is constitutionally required.
However, after the Furman Court found the existing death penalty statutes unconstitutional, state legislatures
responded by enacting new death penalty statutes, each of which created a bifurcated system with a separate
proceeding for the penalty determination. When the Supreme Court reviewed Georgia's statute in Gregg, it
acknowledged that the bifurcated procedure was one of the safeguards that helped ensure that the death penalty
would not be imposed in a wholly arbitrary, capricious, or freakish manner. 428 U.S. at 162- 63, 206-07.
Review supra note 3 and accompanying text.
36. Tuilaepa v. Cal., 512 U.S. 967, 971 ( 1994) ("Our capital punishment cases under the Eighth
Amendment address two different aspects of the capital decis ion-making process: the eligibility decision and
the selection decision."); Carter & Kreitzberg, supra n. I, at 52- 54.
37. E.g. Cal. Penal Code § 190.3 (providing that the proceedings during the penalty phase include evidence
"as to any matter relevant to aggravation, mitigation, and sentence" and arguments made by counsel).
38. See Ring v. Ariz., 536 U.S. 584, 609 (2002) (holding that a defendant has a Sixth Amendment right to
have a jury determine the existence or nonexistence of the aggravating circumstances that make a case eligible
for a sentence of death).
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TULSA LAW REVIEW
(Vol. 42:437
guilt/innocence phase. A jury must determine that the government has proven at least
one aggravating circumstance in the case. The eligibility criteria-usually in the form of
aggravating circumstances-act as a filter to determine those cases for which the death
penalty is a permissible sentencing option.39 Aggravating circumstances are the means
to distinguish one murder as worse than others and, therefore, eligible for a sentence of
death. A conviction of murder in the first degree is not sufficient for the imposition of
the death penalty. Without a finding of an aggravating circumstance, there is no
possibility of imposing death as a punishrnent.40
The Supreme Court has held that aggravating circumstances in a death penalty
statute are the functional equivalent of the elements of the crime in the guilt/innocence
triai. 41 As a result, every defendant has a Sixth Amendment right to have a jury
determine whether the statutory aggravating circumstances have been proven. 42
Aggravating circumstances are viewed as elements of a crime due to the function they
perform in a capital trial. In the context of the guilt/innocence phase of a trial, the Court
has held that if proof of a fact is necessary to increase the possible punishment, then that
fact is the equivalent of an element of the crime. 43 The prosecution must prove these
facts beyond a reasonable doubt, and a defendant has a right to a jury determination of
these facts.
Aggravating circumstances perform this same function m the penalty
determination of a capital case. An aggravating circumstance must be proven in order to
increase the possible punishment for murder from the usual punishment to the death
penalty.44 For example, in California, murder in the first degree is punishable by
twenty-five years to life. If additionally, an aggravating circumstance --called a special
circumstance in California-is proven, the defendant becomes eligible for one of only
two possible punishments: life without the possibility of parole or death. 45 Thus, a
defendant convicted simply of murder is not eligible for and cannot be sentenced to
death. If, however, a defendant convicted of murder is also convicted of an aggravating
circumstance, such as a murder with torture, a murder in the course of a rape, or a
murder in the course of a double homicide, the defendant then falls within the pool of
persons for whom death is a possible punishment.46 The jury must find that the
defendant committed the torture, rape, or double homicide beyond a reasonable doubt in
the same manner that they deliberated and found the elements of murder in the first
degree beyond a reasonable doubt. 47
The third decision is whether the death penalty should be imposed on the
39. The Supreme Court has held that a death penalty statute must, in some meaningful way, narrow the
class of cases eligible for death. In so doing, each statute must identify those characteristics it believes makes
certain murders worse than others. Gregg, 428 U.S. at 206-07.
40. E.g. Cal. Penal Code § 190.2(a).
41. Ring, 536 U.S. at 609 (stating that "[b]ecause Arizona's enumerated aggravating factors operate as the
'functional equivalent of an element of a greater offense' the Sixth Amendment requires that they be found by
a jury" (quoting Apprendi v. N.J., 530 U.S. 466,494 n. 19 (2000))).
42. /d.
43. Ring, 536 U.S. at 585; Apprendi, 530 U.S. at 494 n. 19.
44. Apprendi, 530 U.S. at 494 n. 19.
45. Cal. Penal Code§ 190.2(a).
46. /d. at§ 190.2(a)(2), (a)( 17)(C), (a)( IS).
47. See Ring, 536 U.S. at 609.
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INNOCENT OF A CAPITAL CRIME
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defendant. This is called "death selection."48 In many ways, the death selection
decision is the heart of the penalty phase of the trial. While the eligibility decision asks
whether this defendant is in the class of defendants on whom a sentence of death may, in
fact, be imposed, the death selection determination asks whether this eligible defendant
should receive a sentence of death. The Eighth Amendment requires that the selection
decision include consideration not only of the circumstances of the crime but also the
background and characteristics of the individual defendant. 49 This is presented through
mitigating evidence. The mitigation stage is an opportunity for a defendant to provide
reasons why the defendant should not be sentenced to death. Mitigating factors may
include the role played by the defendant in the crime, an abusive childhood, a mental
disorder, or any information that allows for an individualized consideration of a
defendant. 50
The fact finder could make a mistake at any of the three decision points. First, the
defendant might not have committed the murder. Second, the defendant might not have
committed the aggravating circumstance-for example, the murder was not committed in
the course of a rape or the murder was not a double homicide. Third, the defendant
might not be deserving of death under the formula used by the state-for example,
aggravating circumstances do not outweigh mitigating circumstances. The third decision
of death selection is more of a value judgment than a factual determination. In contrast,
the first two decisions- whether defendant committed the murder and whether an
aggravating circumstance exists- are factual determinations.
With the factual
determinations, a fact finder may make a mistake; a factually innocent person may be
found guilty or a person who is innocent of the aggravating circumstance may be found
to be within the class of persons eligible for death. In the latter instance, the defendant
is, in essence, innocent of a "capital crime."
Once the trial is over, what can an innocent person do?51 Does a defendant's
ability to raise a claim of innocence at that point differ depending on whether he is
innocent of the crime or innocent of the aggravating circumstance? The Court has
repeatedly emphasized that the trial is the "main event."52 Ironically, at the same time
the Court promulgated procedures to ensure reliability of a capital trial, it also began a
48. There are really two separate and distinct determinations that must precede any sentence of death: "an
eligibility decision and [a] selection decision." Tuilaepa, 512 U.S. at 917. The eligibility decision is based on
whether this defendant is in the class of defendants on whom a sentence of death may, in fact, be imposed. !d.
at 971-72. The selection determination is based on whether this eligible defendant should receive a sentence of
death based upon consideration of not only the circumstances of the crime but also the background and
characteristics of the individual defendant. /d. Although the Supreme Court and other courts did not initially
frame these two distinct decisions, later case law began to articulate the two distinct determinations as part of
the discussion. ld. at 971 ("Our capital punishment cases under the Eighth Amendment address two different
aspects of the capital decision-making process: the eligibility decision and the selection decision.").
49. !d. at 272.
50. Carter & Kreitzbcrg, supra n. I, at 137.
51. Rosen, supra n. 6, at 107 (suggesting that if we are unable or unwilling to structure our criminal justice
system to ensure that we do not execute innocents, the death penalty must be found unconstitutional and stating
"[t)he innocence of any specific defendant is not the issue. If we cannot identify all of the innocents we
execute, then the only way we can protect those innocents is to examine the capital punishment system as a
whole to detennine whether the imperfections in the system undermine the constitutionality of the
punishment.").
52. Review supra note 17 and accompanying text.
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campaign to limit the ability of a defendant to get postconviction review.
IV. WHAT I SlNNOCENCE?
A.
Innocence ofa Crime and Innocence ofthe Death Penalty
Innocence of the crime in a capital context refers to the underlying murder
convictiOn. Innocence of the death penalty has come to mean innocence of death
eligibility. The primary focus of death eligibility has been on aggravating circumstances.
Without an aggravating circumstance, there is no capital offense that would render the
defendant death eligible because the underlying murder, standing alone, is not a capital
crime. This means that innocence of death eligibility should be treated as innocence of
the underlying murder. However, innocence of the death penalty results in a reduction of
punishment rather than freedom, as in the case of innocence of the crime.
In the unique process of death penalty cases, death eligibility is comparable to
elements of a crime because it defines a "capital crime." 53 The United States Supreme
Court has recognized that death eligibility functions in a comparable manner to an
element of a crime. In Sawyer v. Whitley, the Court held that "actual innocence"
included innocence of circumstances or conditions that make a defendant death
eligible. 54 Writing for the majority, Chief Justice Rehnquist explained that death
eligibility should be treated the same as the elements of the crime:
Insofar as petitioner's standard would include not merely the elements of the crime
itself, but the existence of aggravating circumstances, it broadens the extent of the inquiry
but not the type of inquiry. Both the elements of the crime and statutory aggravating
circumstances in Louisiana are used to narrow the class of defendants eligible for the death
penalty. And proof or disproof of aggravating circumstances, like proof of the elements of
the crime, is confined by the statutory definitions to a relatively obvious class of relevant
evidence. 55
53. The eligibility test was applied by the Fifth and Eleventh Circuit Courts of Appeal. Sawyer, 505 U.S. at
346 (quoting Sawyer v. Whitley, 945 F.2d 812, 820 (199 1) ('"[W]e must require the petitioner to show, based
on the evidence proffered plus all record evidence, a fair probability that a rational trier of fact would have
entertained a reasonable doubt as to the existence of those facts which are prerequisites under state or federal
law for the imposition of the death penalty. "'); Johnson v. Singletmy, 938 F.2d 1166, 1183 ( lith Cir. 1991)
("Thus, a petitioner may make a colorable showing that he is actually innocent of the death penalty by
presenting evidence that an alleged constitutional error implicates all of the aggravating factors found to be
present by the sentencing body. That is, but for the alleged constitutional error, the sentencing body could not
have found any aggravating factors and thus the petitioner was ineligible for the death penalty. In other words,
the petitioner must show that absent the alleged constitutional error, the jury would have lacked the discretion
to impose the death penalty; that is, that he is ineligible for the death penalty." (emphasis in original)).
54. Sawyer, 505 U.S. at 347. In his concurring opinion, Justice Stevens argued for a broader definition of
innocent of the death penalty. He reasoned that the constitutional application of the death penalty requires a
jury to consider all mitigating evidence in making its decision as to whether this defendant should be selected
for death. In a rare case, he posited, one may be innocent of the death penalty from either the degree or amount
of mitigating evidence that was available but not presented to the jury. Finally, he notes with irony that
although the Court espouses a "death is different" attitude, it then requires the same objective criteria for both
its guilt and penalty assessment of innocence. /d. at 360-76 (Stevens, Blackrnun & O'Connor, JJ., concurring).
55. /d. at 344-45 (majority). Although beyond the scope of this article, the language from Sawyer supports
the argument that the absence of conditions of eligibility, such as the necessary mens rea for a felony-murder
accomplice or the status of being mentally retarded, should also be a basis for claiming a miscarriage of justice
or as support for a freestanding claim of innocence. /d. at 344-45. Chief Justice Rehnquist suggested that
innocence of the death penalty included conditions of eligibility other than aggravating circumstances. Writing
2006]
INNOCENT OF A CAPITAL CRIME
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The Court confirmed its view of aggravating circumstances as the equivalent of
elements of a crime in Ring v. Arizona. 56 The holding in Ring- that there is a
constitutional right to a jury determination on the existence of aggravating
circumstances- was based on the recognition that aggravating circumstances function in
57
the same manner as elements of a crime.
In each case, the element or aggravating
circumstance is necessary in order to increase the possible punishment allowable.
Supreme Court jurisprudence requires a death penalty statute to narrow the class of
perpetrators who are ultimately death eligible. Without that narrowing function, a death
58
penalty scheme is unconstitutional.
The aggravating circumstance performs this
narrowing function and is indispensable to the constitutionality of imposing a death
sentence. Because the aggravating circumstances are equivalent to elements of a crime,
they are in essence part of the "offense" of a capital crime. There is no crime without an
actus reus and a mens rea. Similarly, there is no capital offense without a finding of at
least one aggravating circumstance. Furthermore, procedures for finding the existence of
an aggravating circumstance are the same as for an element of a crime. 59 In the
guilt/innocence phase or the penalty phase, the state must prove beyond a reasonable
doubt that the aggravating circumstance exists or occurred.
When an element of the crime is lacking, a defendant is not guilty. Similarly, if an
aggravating circumstance is entirely lacking, there is no death eligibility and a defendant
is "not guilty" of death. Death eligibility, in tum, transforms a noncapital crime into a
capital crime. It is, thus, more accurate to speak of innocence of a capital crime or
offense rather than to speak of death ineligibility. 60 Nevertheless, because courts use the
term innocent of the death penalty, we will use that term interchangeably with the more
precise terms of"innocence of a capital crime" and "innocence of death eligibility."61
Although it is logical to think of death ineligibility in broader terms than
aggravating circumstances, courts have been reluctant to extend the idea of innocence of
the death penalty to other death eligibility issues. One other area where an innocence of
the death penalty claim has been recognized is when a defendant argues that he did not
exhibit the requisite mental state or degree of culpable conduct constitutionally required
to be eligible for the death penalty. Often referred to as the Tison factors, the Supreme
Court held that the nonkiller in a felony murder must exhibit (1) major participation in
the felony and (2) a reckless indifference to human life.62
for the majority, he explained " (s]ensible meaning is given to the term 'innocent of the death penalty' by
allowing a showing in addition to innocence of the capital crime itself a showing that there was no aggravating
circumstance or that some other condition of eligibility had not been met." !d. at 345.
56. 536 U.S. at 609.
57. /d.
58. Review supra note 3 and accompanying text.
59. E.g. Cal. Penal Code§ 190.2(a) (requiring a finding of a special circumstance to be eligible for death).
60. The term "capital crime or offense" also captures the reasoning of the Court in considering aggravating
circumstances equivalent to an element that turns murder into capital murder or a noncapital crime into a
capital crime.
61. Cmmw. v. Wheeler, 541 A.2d 730, 736 (Pa. 1988) (holding that a defendant's prior felony conviction
v.:as not sufficient to constitute a '"significant history of felony convictions"' and that this "lone aggravating
Circumstance found by the jury" could not stand, remanding the case for imposition of a life sentence).
62. Tison v. Ariz., 481 U.S. 137, 158 (1987). Although the Court did not grant relief, finding that there was
sufficient evidence of reckless indifference introduced at trial, the Court recognized a failure of the Tison
factors as giving rise to a claim of innocent of the death penalty. See Fairchild v. Norris, 21 F.3d 799, 802-805
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Lower courts have refused to extend the eligibility definition to other contexts. In
2004, the Supreme Court found that it was unconstitutional for a person who is mentally
retarded to be sentenced to death. 63 Following this decision, defendants argued in
postconviction that because they were mentally retarded, they were innocent of the death
penalty and should be permitted to introduce evidence of their innocence in a habeas
corpus proceeding. Although the Supreme Court has not reviewed this question, lower
courts have consistently rejected this argument. 64 Courts have found that the absence of
mental retardation is not an eligibility factor for the death penalty. 65 These courts posit
that the absence of mental retardation is not an element of the death penalty in the same
way that sanity is not an element of a crime. 66 ln both cases, the government does not
have the burden of proof on the issue. In the latter case, the government need not prove
beyond a reasonable doubt that the defendant is sane and in the former case the
government need not prove that a defendant is not mentally retarded. Rather, the burden
is on the defense to demonstrate that a defendant should be excluded from a sentence of
death either because he is insane or mentally retarded. 67 Consequently, courts have
distinguished the issue of whether a defendant is mentally retarded-and therefore not
eligible for the death penalty-from a failure by the government to prove an aggravating
circumstance (which also renders a defendant ineligible for the death penalty).
Courts have additionally declined to extend the definition of innocent of the death
(8th Cir. 1994) (discussing Supreme Court jurisprudence regarding culpability of a nonkiller involved in a
felony murder).
63. Atkins, 536 U.S. at 321. The Court had previously held that execution of the mentally retarded did not
violate the Eighth Amendment's prohibition on cruel and unusual punishment in Pemy v. Linaugh, 492 U.S.
302, 335 ( 1989). However, the Atkins Court noted that, since the Penry decision, a national consensus had
developed against execution of the mentally disabled. Atkins, 536 U.S. at 32 1. As evidence of this consensus,
the Court cited the large number of states which had enacted prohibitions on such executions, the absence of
states reinstating such executions since the Penry decision, and the rarity of such executions even in states
which allowed them. !d. at 3 14-16. The Court also discussed certain deficiencies in mentally retarded persons
in the areas of information processing, communication, abstract and logical reasoning, impulse control, and
understanding of others and how these deficiencies act to lower the moral culpability of such offenders. Id. at
318- 23.
64. E.g. Walker v. True, 399 F.3d 3 15, 326 (4th Cir. 2005) (holding that "[t]he state does not have a
corollary duty to prove that a defendant is ' not retarded' in order to be entitled to the death penalty"); In Re
Johnson, 334 F.3d 403, 404-05 (2003) (5th Cir. 2003) (holding the defendant's evidence of his mental
retardation made him innocent of the death penalty and that the absence of mental retardation is not an element
of the sentence any more than sanity is an element of an offense; holding that neither Apprendi nor Ring render
the absence of mental retardation the functional equivalent of an e lement of capital murder); Walton v.
Johnson, 269 F. Supp. 2d 692, 698 (W.O. Va. 2003) (holding that the Virginia statute governing mental
retardation in death penalty cases did not treat lack of mental retardation as an element of the offense and
specifically placed the burden on the defendant to prove mental retardation by a preponderance of the
evidence); Head v. Hill, 587 S.E.2d 613, 622-23 (Ga. 2003) (overturning the habeas court's decision to grant a
new trial on the issue of defendant's mental retardation); State v. Flores, 93 P.3d 1264, 1267 (N.M. 2004)
(stating "[w]e do not believe the absence of mental retardation is an element of a capital offense for purposes of
analysis under Ring"); but see Simpson v. Dretke, 2006 U.S. Lexis 21873, **6-9 (E.D. Tex. Mar. 27, 2006)
(agreeing that mental retardation might provide a basis for a claim of " innocent of the death penalty" but
denying relief because the petitioner failed to raise his claim in state court and had the opporrunity to present
this evidence in a clemency proceeding); State v. Jiminez, 880 A.2d 468, 483- 89 (N.J. 2005) (deciding the
matter on the basis of state constirutional grounds and applying the principles of Apprendi, Ring. Blakely, and
Booker to cases of mental retardation making it the functional equivalent of an element of the offense).
65. E.g. Walker, 399 F.3d at 326; Johnson, 334 F.3d at 404-05.
66. E.g. Walker, 399 F.3d at 326.
67. For example, the Virginia starute does not treat lack of mental retardation as an element of the offense
and the burden is on the defenst: to prove mcntnl retardation by a preponderance of the evidence. Johnson , 334
F.3d at 403 ; Walton , 269 F. Supp. 2d at 692.
2006]
INNOCENT OF A CAPITAL CRIME
449
penalty to include a claim that compelling new mitigating evidence has been discovered
that was not considered by the jury at trial. 68 Because mitigating evidence only comes
into play after a jury finds a defendant eligible for death, the courts reason that this
evidence does not affect a jury's finding of whether a defendant is eligible for the death
penalty. 69 Because the failure to consider critical mitigating evidence affects the
selection decision, not the eligibility decision, arguments that the defendant is innocent
of the death selection decision have been rejected. As explained in the next section, the
difference between death eligibility and death selection has caused confusion when
courts attempt to apply innocence exceptions to habeas rules. This confusion has
undermined the significance of the absence of proof of an aggravating circumstance.
B.
Habeas Corpus: Claims of Innocence as a Gateway to Habeas
In the United States today, habeas corpus proceedings occur in both state and
federal courts. A habeas proceeding is not a direct appeal from the conviction or
sentence for the crime. Instead, it is a postconviction proceeding that allows for limited
challenges to the continued detention of the individual. 70 Although state habeas
proceedings are generally less restricted than federal habeas proceedings, most of the
habeas corpus jurisprudence has come from federal cases. 71 Thus, postconviction claims
of innocence are most likely the subject of federal habeas petitions.
A federal habeas petition is a civil action brought by a state or federal inmate. 72
Because most capital cases begin as state prosecutions, we will focus on federal habeas
actions that challenge a state conviction and sentence. In federal habeas proceedings, a
petitioner is limited to raising claims that are based on constitutional violations,
violations of federal law, or violations of a treaty provision? 3 A petitioner is not
68. Sawyer, 505 U.S. at 368 (Stevens, Blackmun & O'Connor, JJ., concurring) (taking exception to the
Court's failure to include newly discovered mitigating evidence as a basis for innocence of the death penalty).
Stevens argued that in restricting the definition in that way, the Court
respects only one of the two bedrock principles of capital-punishment jurisprudence. As such, the
Court's impoverished version of capital sentencing is at odds with both the doctrine and the theory
developed in our many decisions concerning capital punishment.
First, the Court implicitly repudiates the requirement that the sentencer be allowed to consider all
relevant mitigating evidence ....
[T]he Court's holding also clashes with the theory underlying our capital-punishment
jurisprudence. The non-arbitrariness- and therefore the constitutionality-of the death penalty
rests on individualized sentencing determinations.
/d. (emphasis omitted).
69. Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003); Turner v. Crosby, 339 F.3d 1247 (lith Cir. 2003);
Johnson, 334 F.3d at 403.
70. As one scholar described it, "(l]n theory, a federal habeas corpus petition is an independent civil suit, in
which the prisoner asks only that a federal court determine the validity of his current detention. In substance, a
habeas action constitutes a collateral challenge to the prisoner's treatment in state court." Larry W. Yackle,
The American Bar Association and Federal Habeas Corpus, 61 L.& Contemp. Probs. 17 1, 172 (1998).
71. Carter & Kreitzberg, supra n. I, at 197- 2 13.
72 . See Frank v. Mangum, 237 U.S. 309, 346 (1915) (Holmes, J., dissenting) ("[H]abeas corpus cuts
through all forms and goes to the very tissues of the structure. It comes in from the outside, not in
subordination to the proceedings, and although every form may have been preserved opens the inquiry whether
they have been more than an empty shell.").
73. The most common constitutional claim raised is ineffective assistance of counsel in violation of the
Sixth Amendment. Another typical constitutional claim is the failure of the prosecution to tum over
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permitted to raise evidentiary or procedural issues.
Over the years, concerns with finality and comity led Congress and the Court to
restrict access to habeas corpus proceedings. 74 Critics of habeas proceedings
complained about the length of time cases were litigated in the courts, especially in death
penalty cases. The courts and the legislatures criticized capital defendants for filing
multiple or successive petitions, arguing that these were merely efforts to delay
executions rather than to review meritorious claims. 75 Other criticisms focused on
habeas litigation as an intrusion by the federal courts into the decisions of state courts.
As a result, more and more restrictions began to appear that limited the scope of habeas
review and the ability to file habeas petitions. Three of those limitations are relevant to
claims of innocence.
First, claims may be "procedurally defaulted." In order to restrict petitioners from
bypassing state courts, there is a requirement that the petitioner "exhaust" state remedies
before bringing a claim in federal court. 76 If a petitioner fails to properly raise a claim in
state court, he may now be precluded from raising that claim because it would violate a
state procedural rule. The most common example is the time limits that states impose
within which claims must be filed. A claim that fails to comply with a state procedural
rule is now procedurally defaulted, and a petitioner may not file that claim in his federal
exculpatory evidence to the defense (a Brady claim). See Brady v. Md, 373 U.S. 83 (1963); see e.g. Sawyer,
505 U.S. at 347.
74. E.g. id at 341 n. 7. After noting that it is a common occurrence for federal judges to be ovetwhelmed
with last minute "successive or abusive habeas petitions," the Court stated
We of course do not in the least condone, but instead condemn, any efforts on the part of habeas
petitioners to delay their filings until the last minute with a view to obtaining a stay because the
district court will lack time to give them the necessary consideration before the scheduled execution.
A court may resolve against such a petitioner doubts and uncertainties as to the sufficiency of his
submission.
ld ; see Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas
Catpus Cases, 77 N.Y. L. Rev. 699, 712- 15 (2002). This attitude of the Court was not always the case. Bryan
Stevenson observed that
[t]he Supreme Court's capital punishment decisions of the 1970's .. . signal[ed] a readiness on the
part of the federal judiciary to protect death row prisoners from arbitrary or unfair imposition of the
death penalty. . . . [The Court warned] that heightened standards of review and appellate scrutiny
would be constitutionally required in capital case.... Consequently, by the late 1970's and 1980's
capital litigation was not considered " final" until all available state and federal postconviction
review had been completed. The new prototype for capital litigation was a nine-step process that
almost always included petitions for a writ of habeas corpus in federal court.
Jd. at 716-17.
75. E.g. Sawyer, 505 U.S. at 341 n. 7. ("While we recognize (the filling of a successive or abuse habeas
petition a few days before a scheduled execution] as a fact on the basis of our own experience with applications
for stays of execution in capital cases, we regard it as a regrettable fact. We of course do not in the least
condone, but instead condemn, any efforts on the part of habeas petitioners to delay their filings until the last
minute with a view to obtaining a stay because the district court will lack time to give them the necessary
consideration before the scheduled execution."); but see Barbour v. Haley, 410 F. Supp. 2d 11 20, 1135-36
(M.D. Ala. 2006) "[I]t is not hyperbole to view this case as undergirded by anguish, the anguish of death
penalty lawyers who believe the death penalty system as broken .... (A]nguish ... founded on logic. It is a
practical logic which is founded also on the belief that in the face of the limitations periods and other hurdles
imposed on collateral review petitions, there are not enough lawyers willing or able to undertake representation
of[defendants in a capital case] at a point where full review and investigation of a case already once lost can be
mounted.").
76. 28 U.S.C. § 2254(b)(I)(A) ("An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has
exhausted the remedies available in the courts of the State.").
2006)
INNOCENT OF A CAPITAL CRIME
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habeas petition. Because of this restriction, many legitimate constitutional claims are
thus barred from review in any court, state or federal. 77
While procedural default is a judicially constructed concept, the second and third
limitations on habeas petitions are statutory. The second restriction prohibits a petitioner
from filing a second or successive habeas corpus petition. Congress passed this
restriction in an effort to foster finality and conserve judicial resources. Under the
habeas corpus statute, a petitioner is required to bring all available claims in a single,
first habeas corpus petition. The limitations on second and successive petitions
encourage petitioners to identify all issues within a short time frame and within one court
action because an attempt to raise an issue in a later petition is likely to be barred.
The third limitation restricts the ability of a petitioner to be granted an evidentiary
hearing. These bearings in federal court are used to present evidence that was never
presented at trial or which supports claims raised in the habeas petition. For example, if
a petitioner claims that his trial attorney was ineffective, evidence may be presented at a
hearing to demonstrate counsel's failures investigating or presenting the case at trial. In
many cases, without an evidentiary hearing to develop the facts, a petitioner cannot
demonstrate to the court that a constitutional error has occurred.
Prior to 1996, neither the successive petition restriction nor the evidentiary hearing
limitation included any explicit exception based on innocence. In response to the
possible unfairness of precluding claims, successive petitions, and evidentiary hearings,
the Supreme Court developed two exceptions to these rules. The first allowed the claims
of a petitioner to be heard if the petitioner could show "cause and prejudice" for the
lapse. 78 The second exception allowed a claim to be heard if a "miscarriage of justice"
would result if the case did not proceed. 79
It is this second exception, the miscarriage of justice exception, that is important in
our discussion of innocence cases. Essentially equating miscarriage of justice with
actual innocence,80 the Court held that this narrow exception would allow otherwise
77. E.g. Coleman v. Thompson, 501 U.S. 722 (1991) (barring petitioner's federal habeas claim on the
grounds of his failure to file notice of state court appeal within Virginia's statutory thirty-day deadline);
Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001) (holding that an appellant's ineffective counsel claim was
procedurally defaulted by his failure to raise it at the state court level); Aliwoli v. Gilmore, 127 F.3d 632 (7th
Cir. 1997) (refusing to consider appellant's claim of improper rebuttal statements by prosecutor at trial and
holding that because petitioner did not preserve the issue for appeal, the claim was procedurally defaulted at the
state court level).
78. Wainwright v. Sykes, 433 U.S. 72, 87-91 (1997) (extending the bar of"federal habeas review absent a
showing of 'cause' and 'prejudice' attendant to a state procedural waiver" to a waived objection to the
admission of a confession at trial) (citing Francis v. Henderson, 425 U.S. 536 ( 1976)). As one scholar
observed, "[o]n the procedural side, the Court has foreclosed relief with narrow exceptions, to state prisoners
who have failed to preserve their claims in state court, lost on the merits of the claims in prior federal petitions,
or failed to raise issues that could have been raised in prior filings." Jordan Steiker, Innocence and Federal
Habeas, 41 UCLA L. Rev. 303, 303- 304, nn. 1- 3 (1993) (citing Wainwright, 433 U.S. at 72 (petitioner's
failure to comply with a state contemporaneous objection rule at trial must meet the cause and prejudice
standard); Coleman v. Thompson, 501 U.S. 722 ( 1991) (applying Sykes to petitioner's failure, because of
attorney error, to file a timely appeal); Murray v. Carrier, 477 U.S. 478 (1986) (applying Sykes' cause and
prejudice standard to a petitioner's failure, because of attorney error, to raise a particular claim in his state court
appeal); Sawyer, 505 U.S. at 333 (noting cause and prejudice standard applies to claims identical to claims
heard and decided on merits in a previous petition); McClesky v. Zant, 499 U.S. 467 (1991) (applying cause
and prejudice standard to failure to raise new claims not presented in prior proceeding)).
79. Sykes, 433 U.S. at 91; see Steiker, supra n. 78.
80. Stokes v. Armofllrout, 893 F.2d 152, 156 (8th Cir. 1989) (extending the miscarriage of justice exception
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barred claims to be heard where an adequate showing of actual innocence was made by a
defendant. 81 Despite the limitations on habeas review, there continued to be support for
the ability of a defendant to litigate claims of innocence. 82 If a petitioner could
demonstrate a required probability of actual innocence, the Court lifted the restrictions to
hearing the claim, regardless of whether it was precluded as a second or successive
petition, precluded as a request for an evidentiary hearing, or procedurally defaulted
under the state rules. The standard set by the Court for demonstrating innocence varied
depending on whether a petitioner claimed that he was innocent of the crime or innocent
of the death penalty, but the availability of the exception did not vary.
In Schlup v. Delo,83 the petitioner argued that he was entitled to have his
procedurally barred claims heard because he was factually innocent of the crime. He
claimed that he was not the person who committed the murder. Schlup argued that his
evidence of innocence provided a "gateway" through which he could pass and have his
other constitutional claims reviewed on their merits. The Court agreed and held that he
needed to show that it was more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt. 84
In Sawyer v. Whitley, 85 the Court found innocence of the death penalty to be the
functional equivalent to innocence of the crime. However, the Court required a
defendant to meet a higher threshold to demonstrate a miscarriage of justice for these
claims. Sawyer was convicted of first-degree murder and sentenced to death. He filed
his first federal habeas petition, raising numerous claims of error at trial all of which
were denied by the court on the merits. Sawyer then filed a second petition. The court
refused to hear most of the claims raised in his second petition, holding that they were
barred as either abusive 86 or successive. 87 Sawyer argued that the Court should hear his
where federal constitutional error probably resulted in a verdict of death against one whom the jury would
otherwise have sentenced to life in prison); Deutscher v. Whitley, 946 F.2d 1443, 1446 (9th Cir. 1991) (holding
that a miscarriage of justice requires a defendant to show that a "constitutional error substantially undermined
the accuracy of the sentencing determination ... [and) that, but for the constitutional error, the sentence of
death would not have been imposed").
81. Steiker, supra n. 78, at 338 (stating "injustice occurs if an innocent person remains in jail when the
'hook' of a federal claim could provide the occasion for his release").
82. E.g. McC/esl.y, 499 U.S. at 467 (extending the cause and prejudice exception to cases concerning
"abuse of the writ through inexcusable negligence" in order to avoid fundamental miscarriages of justice and
ensure that the ends ofjustice will be served); Kuhlman v. Wilson, 477 U.S. 436,454 (1986) (providing that in
successive petitions, a habeas action that raises the same ground already raised and rejected in a prior petition,
could be heard if it includes a "colorable showing of factual innocence."); Rosen, supra n. 6, at 77 n. 56
(quoting Herrera where Chief Justice Rehnquist announced that "in a capital case a truly persuasive
demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional
and warrant federal habeas relief if there were no state avenue open to process such a claim." (Herrera, 506
U.S. at 417 (internal quotation marks omitted))). Compare this federal standard with Missouri's standard that
allowed it to review a freestanding claim of actual innocence in death penalty cases under the authority of Mo.
Rev. Stat. § 565.035.3 (1984). Amrine v. Rober, 102 S.W.3d 541 (Mo. 2003); but see Henry J. Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 142 (1971) (arguing
that "with a few important exceptions, convictions should be subject to collateral attack only when the prisoner
supplements his constitutional plea with a colorable claim of innocence").
83. 513 u.s. 298.
84. ld. at 321 (emphasis added). Schlup was tried and convicted of murdering a fellow inmate and was
sentenced to death. He claimed that he was actually innocent of the crime, and that the state unconstitutionally
failed to disclose certain exculpatory evidence at his trial. /d. at 301-13.
85. 505 U.S. at 341.
86. See id. at 338 ("[N]ew claims, not previously raised, ... constitute an abuse of the writ." (citing
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INNOCENT OF A CAPITAL CRIME
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88
claims because he was innocent of the death penalty and therefore he fell within the
miscarriage of justice exception. The Court held that a defendant claiming that he is
innocent of the death penalty must show by clear and convincing evidence that there was
"a fair probability that a rational trier of fact would have entertained a reasonable doubt
as to the existence of those facts which are prerequisites under state or federal law for the
imposition of the death penalty."89
The status of the Sawyer and Schlup standards was thrown into question when
Congress amended the habeas statute in 1996 with passage of AEDPA. 90 This
legislation was the product of some forty years of debate on the issue of reform of habeas
corpus. It was designed to streamline the process of habeas corpus review through a
number of procedural reforms, including redefining the standard of review for state
cases,91 imposing a statute of limitations on the filing of habeas petitions,92 limiting the
filing of second and successive petitions,93 and restricting the availability of evidentiary
94
fior habeas petrtwners.
..
.
hearmgs
Although AEDPA did not include any provisions that directly affected procedural
default, there were amendments to the existing statutory provisions on the ability of a
court to grant evidentiary hearings or to hear claims raised in a second or successive
habeas petition. The AEDP A amendments included an "innocence proviso" as an
exception to the general rules prohibiting second or successive petitions or the granting
of an evidentiary hearing where the petitioner failed to develop the factual basis for the
claim in state court. The exception for second or successive petitions requires a two-part
showing:
(A) the factual predicate for the claim could not have been discovered previously through
the exercise of due diligence; and
(B) the facts underlying the claim, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying oflense. 95
McC/esl.y, 499 U.S. 467)).
87. Sawyer v. Whitley, 772 F. Supp. 297 (E. D. La. 1991 ).
88. Sawyer, 505 U.S. at 335. In a second federal habeas petition, Sawyer claimed a Brady violation,
arguing the police failed to tum over exculpatory evidence that undermined the credibility of a prosecution
witness as well as a statement by a child witness that Sawyer had attempted to prevent an accomplice from
setting fire to the victim. /d. at 349.
89. /d. at 346 (quoting Sawyer, 945 F.2d at 820).
90. 110 Stat. 1214.
91. 110 Stat. 1219 (amending 28 U.S.C. § 2254(d) to provide that no relief may be granted from a state
decision unless the decision is "contrary to or involved an unreasonable application of clearly established
federal law as determined by the Supreme Court of the United States; or . . . based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.").
92. 110 Stat. 1217 (adding to 28 U.S.C. §2244 a one-year statute of limitations for a writ of habeas corpus).
93. 28 u.s.c. §2244(d)(l).
94. 28 U.S.C. §2254(e)(2).
95. 110 Stat. 1221 (emphasis added). The innocence proviso for evidentiary hearings is similar but not
identical. It provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the
Court shall not hold an evidentiary hearing ... unless: .. . (A) the claim relies on ... a factual
predicate that could not have been previously discovered through the exercise of due diligence; and
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There are two aspects to the AEDPA provisions that impacted the review of claims
of innocence. First, AEDPA still did not address how claims of innocence impact the
ability of a court to hear an otherwise procedurally defaulted claim. Second, AEDPA
raised the threshold showing required to hear a second or successive petition from a
preponderance of the evidence to clear and convincing evidence. These changes raised
several legal issues and questions.
One of the important questions was whether the Schlup preponderance standard
still existed for the miscarriage of justice exception to procedural default. This question
was answered in the Court's recent decision in House v. Bel1. 96 The Court granted
House habeas relief under the standard set out in Schlup. The Court acknowledged that
the habeas statute has no provision for claims barred by procedural default.
Consequently, the Court held Schlup, and not AEDPA, applied. Because House's
petition was his first federal habeas petition of a defaulted claim, AEDPA did not apply.
The Court recognized its responsibility to review all the evidence, old and new,
incriminating and exculpatory, without regard to admissibility. 97 The Court then rearticulated the standard in Schlup by "removing the double negative" stating that a
petitioner must show that it was more likely than not any reasonable juror would have
reasonable doubt. 98
In House, the government argued that the language of the AEDPA amendments
increased the standard for all innocence claims to clear and convincing evidence. They
posited that AEDPA had raised the standard for evidentiary hearings and successive
petitions and that this higher standard should apply in cases of procedural default as well.
The Court rejected this argument, finding that the Schlup preponderance standard still
remained for the nonstatutory issue of procedural default in a first petition. As Justice
Kennedy, writing for the majority, noted in House, "[neither the successive petition nor
the evidentiary hearing provision of AEDPA] addresses the type of petition at issue
here--a first federal habeas petition seeking consideration of defaulted claims based on a
showing of actual innocence."99 Using the reasoning of the Court in the House case,
Sawyer should still govern claims of a miscarriage of justice to overcome procedural
default when innocence of the death penalty is the basis of the claim. Exceptions to
procedural default-whether innocence of the crime or innocence of the death penaltyare simply not covered in the habeas statute. Case law must continue to provide the
governing standards.
Continuing to apply Sawyer to innocence of the death penalty claims does not
create the same controversy as applying Schlup to claims of innocence of the crime
because Sawyer requires the same clear and convincing standard of proof as in the
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. § 2254(b)(2). For our discussion, it is important to note that the proviso includes both a standard of
"clear and convincing evidence" and the phrase "underlying offense," the same as the proviso for successive
petitions. !d.
96. 126 S. Ct. 2064 (2006).
97. !d. at 2077 (quoting Schlup, 513 U.S. at 327- 28).
98. !d.
99. /d. at 2078.
2006]
INNOCENT OF A CAPITAL CRIME
455
amended habeas statutes. Consequently, the tests as set out in Sawyer and Schlup should
continue to govern when a showing of innocence can overcome a procedural default
barrier and is allowed to be heard.
The more difficult issue is whether AEDPA's amended language of innocence of
the underlying offense still includes a claim of innocence of the death penalty as an
exception to the bars on successive petitions or gaining an evidentiary hearing.
Specifically, the question is: does the underlying offense allow the filing of a successive
petition or the granting of an evidentiary hearing only to one who is innocent of murder
or does it also include one who is innocent of the aggravating circumstance?
There is little evidence that the changes in the language dealing with successive
petitions and evidentiary hearings were intended to preclude a claim of innocence of the
death penalty. The language in AEDPA requiring a showing of innocence of the
underlying offense occurs in the statutory provisions that pertain to both noncapital and
capital cases. In noncapital cases, there is, of course, no innocence of death eligibility or
capital crime to consider. Thus, the generic language would be appropriate where the
vast majority of habeas cases are noncapital and claims of innocence would refer to
innocence of the underlying crime.
AEDPA also includes what has been referred to as "opt-in" provisions for capital
cases. The opt-in sections provide a whole separate set of rules, restrictions, and tests for
those states that qualify as an opt-in state. 100 An examination of the opt-in provisions
also provides no direct evidence of a legislative intent to exclude a claim of innocent of
the death penalty from the definition of innocence. These provisions do not directly
address limitations for the review of successive petitions or the granting of an evidentiary
hearing. Instead, the opt-in provisions refer back to the general habeas provisions on this
issue.
For example, title 28 U.S.C. § 2262 provides for the granting of stays under certain
circumstances. One basis for a stay is to meet the standards of the general habeas
provision, § 2244b, which includes an innocent of the underlying offense provision.
Section 2266 of the capital opt-in provisions uses the terms "ends of justice" and
"miscarriage of justice" from Schlup and Sawyer as part of the reasoning for permitting
delays in rendering decisions in capital habeas cases. Thus, if anything, the opt-in
provisions appear to be re-enforcing the pre-AEDPA terminology and concepts that
include innocent of the death penalty.
The legislative history of the opt-in provisions is inconclusive at best. An earlier
draft that addressed the circumstances under which a stay of execution may be obtained
limited its application to a showing of innocence of the underlying offense. In the final
bill, however, this restriction was deleted. The commentary by the Committee on
Government Reform and Oversight Findings indicates an understanding that underlying
offense in the proposed limitation on stays excluded death eligibility. 101 The fact that
100. 28 U.S.C. §§ 226 1- 2266 (2000) (For states to "opt in" for expedited habeas review, they must have the
U.S. Attorney General certify that the state has established a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent counsel in state postconviction proceedings
brought by indigent prisoners who have been sentenced to death. The statute also establishes time and tolling
requirements on habeas petitions.).
101. H.R. Rpt. No. 104-23 at 16-17 (1995)(stating "[u]nder proposed 28 U.S.C. 2257(c), the notion of cause
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this language was struck from the provision supports the interpretation that Congress did
not intend to eliminate the notion of innocence of death eligibility from the habeas
calculation. 102 Additionally, the Committee's analysis refers to underlying offense as
the same definition of actual innocence used by the Supreme Court in Sawyer. Sa~er's
defmition of actual innocence, of course, included innocent of the death penalty or death
eligibility. All in all, the legislative history leaves one without a satisfactory answer on
the meaning of underlying offense.
The ambiguity in the meaning of underlying offense is also reflected in conflicting
judicial decisions. The Ninth Circuit Court of Appeals held that the phrase underlying
offense includes the concept of death eligibility when deciding whether to allow review
of a successive petition. 103 In Thompson v. Calderon, 104 the petitioner argued that he
was innocent of rape, which was the only aggravating circumstance -called a special
circumstance in California-that made the murder a death-eligible crime. 105 Based upon
his evidence of innocence, Thompson argued he should be permitted to file a successive
habeas petition. 106 The court agreed. 107 It articulated three reasons to support its
finding that underlying offense included death eligibility. First, it appeared that
Congress had adopted the standard the Supreme Court set out in Sawyer that included
death eligibility as a form of actual innocence. 108 Second, the change in language to the
phrase underlying offense likely reflected the fact that the successive petition provision
applies to noncapital and capital cases. 109 Third, because death eligibility is necessary to
have a capital murder, Thompson was in essence claiming innocence of the "conviction
of the 'underlying offense' of capital murder." 110
The Eleventh Circuit Court of Appeals adopted a different view and interpreted
underlying offense to exclude death eligibility. 111 In the case of In re Medina, the court
found that the petitioner's challenge of death ineligibility, the invalidity of both
aggravating circumstances in his case, did not fit within the meaning of the underlying
offense. 112
for failing to raise a claim earlier is spelled out in standard fashion as connoting state action in violation of
federal law or the unavailability of the legal or factual basis of the claim at the time of earlier proceedings. The
restriction of the class of claims that may be raised in paragraph (3) of subsection (c) is based on the definition
of 'actual innocence' suggested by the Supreme Court's decision in Salryer v. Whitley. 505 U.S. 333 (1992).
Only claims impugning the reliability of the petitioner's conviction for the underlying offense under the
specified standard could be raised. In light of the requirement that a claim must relate to the underlying offense
for which the capital sentence was imposed, proposed 28 U.S.C. 2257(c) bars raising at this stage claims that
go only to the validity of the capital sentence and claims that go only to the petitioner's eligibility for a capital
sentence.").
I 02. One could argue that the Committee's understanding of "underlying offense" indicates that underlying
offense in the general habeas provisions excludes death eligibility. However, the Committee was unclear,
confused, or simply failed to understand the state of the case law.
103. Thompson, 151 F.3d 918, 924 (9th Cir. 1998).
I 04. /d.
I 05. /d. at 920.
106. /d.
107. !d. at 921 , 924.
108. Thompson , 151 F.3d at 923- 24.
109. !d. at 924.
II 0. !d. at 923- 24.
Ill. In re Medina, 109 F.3d 1556 (lith Cir. 1997).
112. Jd. at 1566.
2006]
INNOCENT OF A CAPITAL CRIME
457
There are other cases that appear to find that innocence of the death penalty is not
included in underlying offense. These cases are cited by courts and commentators as
examples of judicial decisions that underlying offense does not include innocence of the
death penalty. In most of the cases, however, the issue is death selection and not "death
eligibility." Death selection has never been included in the meaning of actual innocence,
even under Sawyer. Because these cases do not in fact involve innocence of death
eligibility, they add to the confusion and inconclusiveness of judicial determinations of
. o ftiense. 113 1n the case o fin re p rovenzano, 114 the petitiOner
..
the meaning of underIymg
claimed both to have discovered new mitigating evidence and that four out of five
aggravating circumstances alleged in his case were invalid. 115 The court denied leave to
file a successive petition because these were "sentencing stage" claims. 116 Similarly, in
the case of In re Jones, 117 a case in which the petitioner was claiming that the electric
chair was cruel and unusual punishment, the Eleventh Circuit found this to be a
sentencing stage claim and not related to the underlying offense. 118 In Burris v.
Parke, 119 the Seventh Circuit Court of Appeals found the defendant's claim that
additional mitigating evidence would have changed the sentence did not qualify as one
affecting the underlying offense in the innocence exception to the restriction on
evidentiary hearings. 120 In each of these cases, the claim related to death selection or
imposition and not to a death eligibility issue.
The issue remains unsettled in academic literature. Two highly regarded
authorities on habeas corpus suggest that because Congress passed AEDPA using almost
the identical language as Sawyer, any interpretation of the AEDP A language should be
consistent with that in Sawyer. Therefore, underlying offense is better construed as
encompassing death ineligibility. 121
113. See Wright v. Angelone, 151 F.3d 151 (4th Cir. 1998). The Fourth Circuit Court of Appeals has also
indicated in dictum that it would consider "underlying offense" to exclude innocence of the death penalty.
Similar to the misconception in the other circuits, the Fourth Circuit made this comment in a case involving a
claim that mitigating evidence had not been presented. Again, this is not a claim of death ineligibility. The
Fourth Circuit further failed to recognize that there might well be a difference between exceptions to the
judicial doctrine of procedural default, which would use Sawyer, and exceptions to the statutory limits on
evidentiary proceedings and successive petitions. /d. at 164 n. 8.
114. 215 F.3d 1233 (lith Cir. 2000).
115. ld. at 1235- 37.
116. /d. at 1237.
117. 137 F.3d 1271 (lith Cir. 1998).
11 8. /d. at 1274.
11 9. 116 F.3d 256 (7th Cir. 1997); see also Hope v. U.S., 108 F.3d 119 (7th Cir. 1997). In Hope, the
defendant was convicted of a firearm charge with a sentence enhancement for prior convictions; he challenged
the enhancement. The court found that Hope could not maintain a successive petition because the sentence
enhancement did not qualify as relating to the "underlying offense." /d. at 120.
120. /d. at 258-60.
121. See Randy Hertz & James S. Liebman, Federal Habeas C01pus Practice and Procedure§ 20.2b, 914
(5th ed., LexisNexis 2005) ("Because the provision verbally replicates the Supreme Court's Sawyer standard,
and because Sawyer established that standard in the process of defining the phrase 'innocence of the death
penalty,' the provision arguably is meant to encompass ineligibility for the death penalty."); Stevenson. supra
n. 74, at 739-40. Stevenson further points out that the better interpretation, as a matter of statutory
construction principles, is to presume that Congress meant the words to mean the same as they do in Sawyer.
!d.; but see Carol S. Steiker & Jordan M. Steiker, The Seduction of Innocence: The Attraction and Limitations
of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J. Crim. L. & Criminology 587 , 611
(2005) (describing, in reference to the AEDPA provision on second or successive petitions, that Congress
created an innocence exception that excludes ineligibility of the death penalty).
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Even if the language of the statute itself were read to preclude an innocence of
death eligibility claim, a judicially managed equitable consideration would be
Appropriate. The judicially developed miscarriage of justice exception is intended to
operate in tandem with the statute. This purpose would seem to remain equally strong
post-AEDPA. In Schlup, the Supreme Court observed that it had "repeatedly noted the
interplay between statutory language and judicially managed equitable considerations in
the development of habeas corpusjurisprudence." 122 They acknowledged that the 1966
amendments to the habeas statute had deleted language that referred to general "ends of
justice" concems. 123 Nevertheless, the Court had found that a successive petition must
be heard to prevent a miscarriage ofjustice. 124
The same reasoning and policy that support a miscarriage of justice exception to
restrictive habeas rules also support continuing to recognize innocence of a capital crime
as falling within that exception. In House, the Court reaffirmed that the miscarriage of
justice exception was an appropriate balance of"'the societal interests in finality, comity,
and conservation of scarce judicial resources with the individual interest in justice that
arises in the extraordinary case. "' 125 This balance is upheld, in large part, because the
miscarriage of justice exception is applied infrequently and only in the most meritorious
cases. 126 The Court recognizes that to allow a conviction and sentence of an innocent
person to stand is a manifest injustice. At the same time, the Court continues to honor
the need for finality, respect for state court decisions, and conservation of federal judicial
resources.
C.
Habeas Corpus: Claims of Innocence as a Freestanding Claim
While most of the habeas cases focus on innocence as a gateway to a hearing on a
constitutional claim, such as ineffective assistance of counsel, defendants have also filed
habeas petitions with freestanding claims of innocence. This means that the petitioner
does not challenge any procedures that took place at trial but rather simply claims that
despite a constitutional trial he or she is innocent of the crime. A freestanding claim of
innocence argues that the execution of an innocent person is unconstitutional and should
be heard in a habeas proceeding.
It may be a surprise to some that this question is a matter of debate, discussion, and
disagreement even among the members of the Supreme Court. And yet, twice in thirteen
years, the Supreme Court was directly asked to decide whether it was unconstitutional to
execute an innocent person and both times failed to give a direct answer. First in 1993,
in Herrera v. Collins, 127 and again in 2006, in House v. Bell, 128 the Court ultimately
avoided a decision directly on this issue. Both times, however, several justices did
122. 51 3 U.S. at 319 n. 35.
123. !d. at 320.
124. !d. at 318- 26.
125. 126 S. Ct. at 2076 (quoting Schlup, 513 U.S. at 324).
126. !d. at 2077 (emphasizing that "the Schlup standard is demanding and permits review only in the
'extraordinary' case" (citing Schlup, 513 U.S. at 327)).
127. 506 U.S. 390. In Herrera, the question was whether the newly discovered evidence of innocence
without an underlying constitutional violation was grounds for federal habeas relief.
128. 126 S. Ct. 206.
2006)
INNOCENT OF A CAPITAL CRiME
459
express their views on how this question should be answered.
[n Herrera, Chief Justice Rehnquist, writing for the majority, "assumed" without
deciding that, in a capital case, the execution of an innocent person would be
unconstitutionai. 129 However, a majority of the Court held that the evidence of
innocence presented by Herrera fell far short of a "truly persuasive showing of
innocence" which was needed for the Court to review his claim. 130 Six of the Justices
nonetheless expressed the view that executing an innocent person is unconstitutionat. 13 1
Justices Scalia and Thomas were equally emphatic that the Constitution does not and
cannot protect a defendant from this possibility. 132
At the time Herrera was decided, there had been only forty-eight exonerations
from death row and none had been as a result of DNA evidence. 133 [n 2006, the
landscape changed dramatically. During the thirteen years between Herrera and House,
there had been seventy-five death row exonerations, 134 fourteen on the basis of DNA.
135
[n nondeath penalty cases, DNA exonerations numbered one hundred ninety-four.
By 2006, the execution of an innocent person was a reality the Court could no
longer ignore. The House case presented to the Court the question of whether it was
unconstitutional to execute an innocent person. 136 House argued that he was innocent of
the crime for which he was convicted and sentenced to death. He presented to the Court
new evidence to support his innocence. This included DNA evidence that positively
excluded House as the source of semen stains found on the victim's clothing. Blood
129. Herrera, 506 U.S. at 417 ("We may assume, for the sake of argument in deciding this case that in a
capital case a truly persuasive showing of 'actual innocence' made after trial would render the execution of a
defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such
a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on
the need for finality ... and the enormous burden that having to retry cases ... would place on the States, the
threshold showing for such an assumed right would necessarily be extraordinarily high.").
130. !d. Herrera was executed by the state of Texas on May 12, 1993. Death Penalty Info. Ctr., Execution
Database, http://www.deathpenaltyinfo.org/executions.php (accessed Jan. 15, 2007).
131. Justice O'Connor wrote, "I cannot disagree with the fundamental legal principle that executing the
innocent in inconsistent with the Constitution." Herrera, 506 U.S. at 419 (O'Connor & White, JJ.. concurring).
Justice White wrote, " I assume that a persuasive showing of 'actual innocence' made after trial, even though
made after the expiration of the time provided by law for the presentation of newly discovered evidence, would
render unconstitutional the execution [of a defendant]." !d. at 429 (White, J., concurring). Justice Blackmun
wrote, "[n]othing could be more contrary to contemporary standards of decency or more shocking to the
conscience than to execute a person who is actually innocent." !d. at 430 (Blackmun, Stevens & Souter, JJ.,
dissenting). The dissent concluded that it violated both the Eighth Amendment as well as the Due Process
Clause of the Fourteenth Amendment and ultimately concluded that "[t]he execution of a person who can show
he that is innocent comes perilously close to simple murder." Herrera, 506 U.S. at 446.
132. !d. at 428. Justice Scalia wrote,
I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly
that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man
who has received ... all of the process that our society has traditionally deemed adequate.
fd. (Scalia & Thomas, JJ. , concurring) (footnote omitted). More recently, in Kansas v. Marsh, Justice Scalia
dismissed the notion of executing an innocent person as virtually impossible stating "(o]ne cannot have a
system of criminal punishment without accepting the possibility that someone will be punished mistakenly ...
But with regard to the punishment of death in the current American system, that possibility has been reduced to
an insignificant minimum." 126 S. Ct. 2516,2539 (2006) (Scalia, J., concurring).
133. Death Penalty Info. Ctr., The Innocence List, http://www.deathpenaltyinfo.org/article.
php?scid=6&did= II 0 (accessed Jan. 28, 2007).
134. /d.
135. Innocence Project, Know the Cases, http://www.innocenceproject.org/know (accessed Jan. 3 1, 2007).
136. House, 126 S. Ct. at 2086.
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stains found on House's jeans belonging to the victim was identified as coming from the
sample tube of blood collected during the autopsy and not from the victim during the
altercation- the presence of a preserving enzyme was found in the blood and threefourths of the tube from the autopsy was empty-and there was evidence that the
husband had a motive to kill his wife, including evidence of prior abusive behavior
toward her, recent threats to get rid of her, and a confession to two of his friends that he
had murdered her. 137
House asked that the Court articulate a standard for evaluating a defendant's claim
of innocence. Once again the Court declined. It assumed, as it had in Herrera, that a
claim of innocence was possible but that House had not presented enough proof to
satisfy such a claim. 138 Because House barely met the Schlup gateway standard, the
Court found that he would not meet a Herrera freestanding claim standard. 139
A freestanding claim of actual innocence is based on the assumption that the trial
was constitutionally adequate. Therefore, the evidence of innocence must be so strong
that it alone undermines the reliability of the conviction, thereby making the execution
unjust and unconstitutional. Because the standard is so difficult to meet, there are few
cases in which the issue has been raised. 140
As with gateway claims, freestanding claims of innocence also raise the question
of whether it is unconstitutional to execute a person who is innocent of the death penalty
or innocent of the aggravating circumstances. This is a far more difficult question than
with the gateway claims since the Court has still not ruled whether it is constitutional to
execute a person who is innocent of the underlying murder. However, the parallels of
innocence of the crime and innocence of the aggravating circumstances are identical to
the parallels in the gateway context. Assuming it is unconstitutional to execute a person
who is innocent of the murder, it should also be unconstitutional to execute a person who
is not eligible for the death penalty.
Whatever hurdles may be imposed on raising innocence as a freestanding claim, it
would be illogical not to recognize the execution of an innocent person as a violation of
the Eighth Amendment. The constitutional issue does not go away because the
defendant had an error-free trial. A strong precedent here is the Court's holding that it is
137. /d. at 2078- 86. The Court distinguishes the different manner in which the issue might arise. If House
had either requested an evidentiary hearing or was filing a second or successive habeas petition, the case would
have to be decided under AEDPA which provides for review only upon a showing of clear and convincing
evidence that but for the constitutional error, no reasonable juror would have found the petitioner eligible for
the death penalty under applicable state law. See 28 U.S.C. §§ 2244(b)(2)(B)(ii), 2254(e)(2) (providing
different standards for successive petitions and evidentiary hearings).
138. House, 126 S. Ct. at 2087. The Court stated "(w]e decline to resolve this issue. We conclude here,
much as in Herrera, that whatever burden a hypothetical freestanding innocence claim would require, this
petitioner has not satisfied it." /d.
139. /d. ("The sequence of the Court's decision in Herrera and Schlup-firstleaving unresolved the status
of freestanding claims and then establishing the gateway standard- implies at the least that Herrera requires
more convincing proof of innocence than Schlup. It follows, given the closeness of the Schlup question here,
that House' s showing falls short of the threshold implied in Herrera.").
140. E.g. In re Byrd, 269 F.3d 561 (6th Cir. 2001). Byrd claimed, in his second habeas petition that he was
innocent of the death penalty based upon an affidavit of his co-defendant, Brewer, who alleged that he, not
Byrd, fatally stabbed the victim in the case. /d. at 565. The court dismisses the claim because Byrd was unable
to satisfy that "'extraordinarily high'" threshold showing required under Herrera, and the information Byrd
presented was not newly discovered evidence. Rather, Byrd was on notice of this information as early as the
filling of his first habeas petition, making this case the "quintessential abuse of the writ." /d. at 565, 572.
2006]
INNOCENT OF A CAPITAL CRIME
461
unconstitutional to execute a person who is insane at the time of execution. Such an
individual may well have had an error-free trial. The concern is with the status of the
individual prior to the execution. Similarly, an individual who is innocent of murder or
innocent of capital murder is in a category of persons whom the state should not
constitutionally be entitled to execute. The defendants in these categories should be able
to raise the constitutional issue in federal habeas, even if it is necessary to meet an
exacting standard such as a "truly persuasive" showing. The courts are adept at finding a
balance between respect for finality and the constitutional concerns, and the high
. of those pnnc1p
. . Ies. 141
threshold standard prevents erosiOn
V.
CONCLUSION
The legal issues in capital cases are highly complicated, whether at the pretrial
stage, the dual trial stages, or the mandatory appeals and, most certainly, in federal
habeas corpus proceedings. We should not, however, allow the complexity to mask the
simplicity of the issue of innocence of a capital crime. The capital nature of the crime
occurs when the element of an aggravating circumstance is proven beyond a reasonable
doubt. The same Sixth Amendment right to a jury verdict exists for this element of a
capital crime. Innocence of this capital crime is the same as innocence of murder, the
prerequisite crime for most capital offenses. The status and function of aggravating
circumstances as an element of a capital crime, in tum, necessitates applying the same
rules for gateway and freestanding claims of innocence that are applied in noncapital
cases.
If a petitioner is innocent of an aggravating circumstance, he should be allowed to
pass through the gateway to overcome any procedural default, successive bar, or
restriction on an evidentiary hearing. The petitioner should also be permitted to raise a
freestanding claim of innocence of the death penalty under the same premise as Herrera
and House: that it is unconstitutional to execute an innocent person. The Court has
consistently warned that "death is different" 142 and suggested that heightened standards
of review should apply in capital cases. Nowhere is this more critical than in questions
of innocence.
141. For an example of the difficulty of prevailing on an innocence of the death penalty claim, review
31 F.3d 1319 (5th Cir. 1994). Jacobs was sentenced to death for the murder of Etta Urdiales.
his trial, he testified that his sister had killed the victim and that, although he was present, he
did not know that she had a gun. /d. At his sister's trial, the state changed its position and claimed that Jacobs
was telling the truth and that Jacobs neither did the killing nor knew his sister had a gun. !d. at 1322- 23. The
state called Jacobs to testifY at his sister's trial. !d. at 1323. In his postconviction appeal, Jacobs argued that he
was not guilty of capital murder because under Texas law he had to either intentionally cause the death of the
victim or anticipate that the death would result. Jacobs, 31 F.3d at 1324; Tex. Penal Code Ann.§§ 19.02(a),
19.03(a) (2003). Jacobs argued that the government's concession to that effect in his sister's trial was "newly
discovered evidence" that entitled him to relief in habeas corpus. Jacobs, 31 F. 3d at 1324. The court did not
dispute that his claim raised an issue of innocence of the death penalty. Nonetheless, the court denied Jacobs
relief, finding that he failed to satisfY the "extraordinarily high" showing required for a freestanding claim of
innocence." /d. Jacobs was executed on January 4, 1995. Death Penalty Info. Ctr., Execution Database,
http://www.deathpenaltyinfo.org/executions.php (accessed Jan. 15, 2007).
142. 428 U.S. at 305 ("The penalty of death is qualitatively different from a sentence of imprisonment,
however long. Death in its finality, differs more from life imprisonment than a I00-year prison term differs
from one of only a year or two."); see Kyles v. Whitley, 514 U.S. 419, 422 (1995) (recognizing that the Court's
"'duty to search for constitutional error with painstaking care is never more exacting than it is in a capital
case"' (citations omitted) (quoting Burger v. Kemp, 483 U.S. 776, 785 (1987))).
Jacobs v. Scott,
!d. at 1322. At